Intermediaries: Who are they?

Since this is a rather extensive issue, the Beacon will deal with it in two parts; the first part explains who intermediaries are, what the liability of an intermediary is and how further transparency can be brought by fixation of liability in Take Down Notice regimes.

In the next part of this series, we will go on to discuss the legal intricacies involved with regard to intermediary rights and the Google vs. Parle case.

“Intermediary” under Section 2(1) reads as –

“intermediary”, with respect to any particular electronic records, means ‘any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes’.”

Liability of Intermediaries

An analysis of Sec 79, clarifies that intermediaries are not held liable for any third party information, provided, they do not initiate the transmission, select the receiver or modify the information in transmission, which means that the role of an intermediary is restricted to providing communication services only.

Now, The Intermediary Rules, 2011 further provide regulation with regard to liability of intermediaries, of which Rules 3(2) and (4) are of specific import. Rule 3(2) states the general due diligence guidelines to be followed by intermediaries. Rule 3(4) states that:

“The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.”

On analyzing various articles on the internet, it was found that the general assumption is that the intermediaries are bound by law to abide by the Take Down Notice under Rule 4. Hence, The Beacon felt it’s imminent that we explore these issues.

The idea is that the intermediaries are bound by law to Act appropriately if they find that the information published or hosted through their computer system is in contravention of sub-rule(2).

The second issue is with regard to the over ridding effect of the IT act over other laws in effect, for the time being, to the exception of The Copyright Act and The Patents Act,

On a combined reading of Sections 79, 81 and the Proviso to 81 we may safely conclude that:

i. Section 79 prevails over any provision contained in any law prevalent for the time being, which includes all other provisions of the Information Technology Act (including Section 81 of the Act).

ii. Section 81 says the provisions of the IT Act (including Section 79) will supersede over any “other law”.

The Proviso to Section 81 says that neither Section 79 nor Section 81 nor any other provision of the IT Act restricts the legitimate exercise of the rights available to “any person” under the Copyright Act or the Patents Act.

Therefore, an intermediary has the right to determine whether or not the material sought to be taken down by an IP owner amounts to an infringement. If the material does not infringe any right, and has been uploaded in exercise of the intermediary’s legitimate rights under the Copyright or Patents Act, he need not take down the material.

Though, the steps taken by the Legislature to curtail online defamation are commendable, it is the intermediaries who have had the misfortune of seen the other side of the coin, this is strictly in the context of freedom of speech under Article 19. The unilateral notice and takedown regime under Intermediary Rules, 2011 leaves the power of “affected persons” to issue takedown notices (including frivolous or unwarranted individuals) virtually unchecked. On the other hand, the notice and takedown rule for Copyright infringement under Copyright Rules, 2013 requires copyright holders to file a suit within 21 days of the take down request, failing which the intermediary may legally reinstate the content that was taken down. This system of burdening the notice issuers with an obligation to file a suit, ensures that all claims will ultimately be evaluated by a court of law, and discourages aggrieved parties from issuing frivolous notices. In our opinion, the IT rules should also include a similar provision. Critics will say that Courts should not be over burdened with extra litigation, and that such litigation should be avoided as far as possible but, this is only one side of the story.

Fact 1: According to news-reports as of August 2013, Mouthshut.com has so far, received over 790 takedown notices, 240 legal notices, and has 11 court cases pending against it.

Fact 2: For Blog portals like Blogger, in order to prevent any copyright infringement, it has to track every single blog under it for any infringing content. This is not to mention that Blogger is only one among many blogging websites out there with the aggregate number of blogs running to millions!

Technocrati reported that it was tracking 112,800,000 (112.8 million) blogs in 2008. This number is only likely to have gone up. To be (very) safe, let’s assume that only 10% of those blogs are hosted by Blogger. This means that Blogger would have to track 1,10,00,000 blogs regularly! Whopper!

Now, let’s consider the total no. of copyrighted works there are globally. Let us assume that every book written in India has copyright protection. In this light, in 2004, India alone published 82,537 new books with almost 30% growth annually. With one country, in one year, publishing more than 80,000 copyrighted works, in 2004 alone the total number of books published globally were roughly around 2,200,000! This does not include the millionsof other works that are automatically granted copyright as soon as they are created each year owing to subsistence of inherent copyright in works of creation. The total number of active copyrights (and infringements) in the world are probably far beyond a comprehensible number!

It will be neither economical nor viable to expect a website to drain its resources to check which claims are frivolous and which aren’t. There needs to be a system in place to keep a check on frivolous claims by aggrieved parties. Mouthshut and other such websites, who are a part of the new internet free speech regime, need their concerns addressed imminently. That’s precisely why we need an amendment on the lines of the Copyright Rules, 2013 for the Information Technology Act as well.

A better fixation of liability will bring better transparency, by curtailing frivolous claims and a much more reliable internet platform for the users.